Katherine A. v. Jerry A.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
July 30, 2024
KATHERINE A.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Petitioner Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) Nos. 23-ICA-427 and 23-ICA-462 (Fam. Ct. Ohio Cnty. No. FC-35-2022-D-82)

JERRY A.,
Respondent Below, Respondent

MEMORANDUM DECISION

In this consolidated appeal, Petitioner Katherine A.1 (“Mother”) appeals the Family
Court of Ohio County’s August 28, 2023, order, which following remand from this Court,
found that it was in the children’s best interest to remain in West Virginia with their Father,
Respondent Jerry A. (“Father”). Mother also appeals the family court’s October 5, 2023,
order denying her motion for reconsideration. Father responded in support of the family
court’s decision.2 Mother filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

This Court previously addressed the underlying matter in Katherine A. v. Jerry A.,
248 W. Va. 672, 889 S.E.2d 754 (Ct. App. 2023), in which we reversed the family court’s
order and remanded the matter for further proceedings. Thus, because that decision
contains a detailed factual recitation of this case, we only need to briefly discuss the
background facts of the case in this decision. The parties were previously married, share
two children, and, while married, resided in Ohio County, West Virginia. During the
marriage, Mother earned a six-figure salary and her job required her to work out of town
multiple days per month. Father earned significantly less, working as a teacher’s aide and

1
To protect the confidentiality of the juveniles involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
Mother is represented by Elgine Heceta McArdle, Esq. Father is represented by
Paul J. Harris, Esq.
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assistant basketball coach. At some point, the parties agreed that Mother should find a
comparable job with reduced travel requirements.

Mother applied for at least one local job, but it did not suit their family’s schedule.
However, in April of 2022, Mother received a job offer to work for a global law firm in
Washington, D.C., which was approximately five hours from the parties’ marital home.
The job offer included a higher salary, potential bonuses, benefits, relocation costs, and the
ability to work from home two days per week with flexible work hours and limited travel.

Several weeks after Mother received the job offer, she asked Father to relocate to
Northern Virginia as a family. Father declined. Mother filed for divorce and sought to
relocate with both children. At the divorce hearing, Mother testified that Father and
paternal grandfather worked with the children on baseball and basketball, but that she
performed the other caretaking functions. Mother also stated that the maternal
grandmother, who assisted with childcare, would be relocating with her. By order entered
August 17, 2022, the family court denied Mother’s request to relocate with the children,
reasoning that Father’s involvement with the children while Mother worked superseded
Mother’s daily caretaking functions. Mother appealed that decision to this Court; as set
forth in Katherine A., we reversed the family court’s order and remanded that matter for
the family court to conduct a full and meaningful analysis regarding the best interests of
the children and whether Mother had sought any other reasonable alternative to her chosen
place of relocation, pursuant to West Virginia Code § 48-9-403(d)(1)(C) (2021).3
Katherine A. at 684, 889 S.E.2d at 766.

A remand hearing was conducted, and on August 28, 2023, the family court entered
its final order addressing the two issues on remand. In that order, the family court found
that it was in the children’s best interest to remain with Father in West Virginia and that
Mother did not seek “reasonable alternatives” prior to accepting her job offer in
Washington, D.C. In support of its ruling, the family court took judicial notice that, “there
[were] many firms in both Pittsburgh [. . .] and Columbus with which [Mother] could have
sought work” and noted that several large, closer-in-proximity, law firms have between

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West Virginia Code § 48-9-403(d)(1) states:

[T]he relocating parent has the burden of proving that: (A) The reasons for
the proposed relocation are legitimate and made in good faith; (B) that
allowing relocation of the relocating parent with the child is in the best
interests of the child as defined in § 48-9-102 of this code; and (C) that there
is no reasonable alternative, other than the proposed relocation, available to
the relocating parent that would be in the child's best interests and less
disruptive to the child.

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1,500 and 2,000 lawyers and Mother did not seek employment at those firms. Instead,
Mother testified that she applied for one local job and the family court held that, “applying
for one job, or a few for that matter, within a six-month time period, is insufficient for
[Mother] to carry her burden that no reasonable alternative existed, particularly where she
continued to be employed with the same employer and had been for so many years.”

Thereafter, Mother filed a motion with the family court to reconsider its August 28,
2023, order. Mother’s motion for reconsideration was denied by order entered on October
5, 2023. Mother timely appealed the August 28, 2023, and October 5, 2023, orders, and
upon Mother’s motion, we consolidated the matters for appeal.

We apply the following standard of review:

When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review
the findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.

Syl. Pt. 2, Christopher P. v. Amanda C., No. 22-918, 2024 WL 2966177, __ W. Va. __,
__S.E.2d __ (2024); accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for
appellate court review of family court orders).

As her first assignment of error, Mother asserts that the family court, on remand,
omitted facts previously relied upon, pulled new facts from the transcript, and reached a
conclusion that was contrary to the evidence. Upon review of the record, we disagree. West
Virginia Code § 48-9-102(a) (2022) states that when family courts are to decide on the
allocation of custodial and decision-making responsibility, the “primary objective [. . .] is
to serve the child’s best interest.” Our state’s highest court has also consistently held that
the best interest of the child “is the polar star by which all matters affecting children must
be guided.” See Galloway v. Galloway, 224 W. Va. 272, 275, 685 S.E.2d 245, 248 (2009)
(citations omitted). Here, the family court held, with instructions on remand, that both
parties provided equal caregiving and parenting functions for their children, but that Father
spent more quality time with the children and determined that Father’s side of the family
was very important in the children’s lives. As such, the family court held that, “the [Mother]
has failed to meet her burden that the best interests of the children are served in relocation.”
These findings were properly within the family court’s discretion and should not be
disturbed on appeal. See In re Tiffany Marie S., 196 W. Va. 223, 231, 470 S.E.2d 177, 185
(1996) (A reviewing court may not overturn a family court’s finding simply because it
would have decided the case differently).

As her second assignment of error, Mother contends that, on remand, the family
court ignored the manifest weight of the evidence in making a gender-based conclusion

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that Father provided substantially more caretaking functions than Mother “due to his
substantial time spent each day with their sons,” while applying an impermissible balancing
of interests between Mother and Grandfather. In support of her argument, Mother states
that Father’s parenting role consisted of ensuring that the children received sports training,
but that Father’s extended family provided the rest of the children’s caretaking functions
when the children were in his care. We disagree.

First, the family court’s order repeatedly stated that, “the parties were equal
caregivers and performed equal parenting functions.” Second, the family court specifically
noted West Virginia Code § 48-9-102(a)(5) (2022), which states that one of the ways in
which a child’s best interest is served is by facilitating “[c]aretaking and parenting
relationships by adults who love the child.” Here, the record reflects that Father’s family
has always been extremely involved and active in the children’s lives and multiple
witnesses presented testimony of the same. Additionally, the family court found that
Father’s family “engaged in more caregiving time day to day than does [maternal
grandmother.]” The family court did not find, as Mother asserts, that Father provided more
caretaking functions, nor did it balance the interests between Mother and paternal
grandfather. Based on the foregoing, we conclude that the family court properly considered
all testimony before it and was in the best position to evaluate the information presented
by each party and their witnesses. See State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d
163, 175 n.9 (1995) (holding that “[a]n appellate court may not decide the credibility of
witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.”).

Lastly, Mother avers that the family court, in its October 5, 2023, order denying her
motion for reconsideration, abused its discretion by improperly using Rule 201 of the West
Virginia Rules of Evidence4 to conclude that “the relocation was not reasonable under the
circumstances” by injecting its own suppositions, characterized as “judicial notice” to
support its ruling based upon facts not in evidence and denied Mother’s request to be heard
on the same. More specifically, Mother argues that the family court erroneously took
judicial notice of other closer-in-proximity law firms where she could have sought
employment and failed to provide her with an opportunity to be heard on said issue, as
mandated in Rule 201. We disagree. On remand, this Court instructed the family court to
conduct “a meaningful analysis of the evidence presented by Mother in relation to the

4
Rule 201 of the West Virginia Rules of Evidence governs the taking of judicial
notice of adjudicative facts and states, “[t]he court may judicially notice a fact that is not
subject to reasonable dispute because it: (1) is generally known within the trial court’s
territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” The Rule goes on to say that a court may take
judicial notice on its own at any stage of the proceeding. Last, the Rule states that, “[o]n
timely request, a party is entitled to be heard on the propriety of taking judicial notice and
the nature of the fact to be noticed. If the court takes judicial notice before notifying a party,
the party, on request, is still entitled to be heard.”
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reasonable alternative element” of West Virginia Code § 48-9-403(d)(1)(C). The family
court properly followed our instructions, and found that:

[S]ince [Mother] knew that she must present evidence to show the
reasonableness and legitimacy of the relocation, and that she must also
present evidence to show that she sought employment at a location less
disruptive to the children’s relationship with [Father], she reasonably should
have been on notice [. . .] that she should present any and all, and more
detailed information as to each employment opportunity sought during her
presentation of evidence, so as to enumerate what potential jobs she
identified at a closer location, what jobs she applied for, and what, if any,
jobs she was offered.

We agree with the family court that Mother had sufficient notice of what types of evidence
should have been presented on remand. Therefore, we conclude that the family court did
not commit error or abuse its discretion.

Accordingly, we affirm the family court’s August 28, 2023, and October 5, 2023,
orders.

Affirmed.

ISSUED: July 30, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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